Some More Observations on Their Own Discovery Policies

Think about looking at other U.S. Attorney office discovery policies in addition to your own district’s.

Other district policies may be more extensive and may have persuasive value with either your prosecutors or your judges.

Other district policies may also provide good policy and legal arguments for discovery even if they don’t create any discovery rights in and of themselves.

NOW THE BLOG:

In last week’s post on USA Today’s publication of local U.S. Attorney discovery policies, I mentioned that one of our former Central District of California deputy federal public defenders, Evan Jenness, had put out an e-mail with some comments on the same article. I spoke with her last week and she told me I could share what she put out, so I thought I’d share her e-mails in today’s post. So, here, in (largely) unedited form, are her contributions – actually from two e-mails.

First:

While the memos contain various renditions of the statement that they are not intended to create substantive rights, they are potentially very useful in our ongoing efforts to obtain complete discovery for cross-examining agents, and perhaps even for cross-examining witnesses, since some memos include policies on obtaining discoverable information from potential witnesses.

Here is a quote from the Central District of California policy memo:

Prosecutors in this office are encouraged to provide discovery beyond what the statutes, rules, and case law mandate, and to apply the general principle that, even absent a specific discovery obligation imposed by statute, rule, or case law, relevant materials should timely be produced absent a legitimate reason for withholding or delaying production. In many of the cases this office handles, there may be such a legitimate reason, for example, to protect a witness, to safeguard investigations of other people or other crimes committed by the defendant, to protect classified or other sensitive national security information, or to preserve a legitimate trial strategy. Prosecutors handling a case bear the burden of affirmatively identifying such a legitimate reason for withholding or delaying production of relevant materialsand, in the absence of doing so, should timely produce all relevant materials, even those not subject to a specific discovery obligation imposed by statute, rule, or case law. Even where prosecutors believe withholding or delaying production is justified, they should consider disclosing to the court the materials at issue and the reasons for withholding or delaying production.

(Emphasis added.)

How many times has a prosecutor told you (or a judge) that the defense has essentially received “open-file discovery”? Per the CD Cal policy memo:

While broad production designed to ensure that the defense is aware of the same relevant information as we are is intended to be the norm, this office’s discovery practices should not be referred to as ‘open file discovery.’. . . The use of the term “open file” is therefore inexact and potentially misleadingin that it may deter the defense from engaging in its own efforts to seek out and obtain information it views as relevant to the case.

(Emphasis added.)

Comparing the policies of various districts also is illuminating. For example, in the Southern District of California: “In large and complex cases, prosecutors should consider preparing and maintaining a written record documenting the preservation, collection, and review of potential discovery.” See https://www.documentcloud.org/documents/ 1503056-sdca-discovery-policy.html (emphasis added). Don’t see that in the CD Cal policy memo, notwithstanding the relatively larger number of ‘large and complex’ cases in this District.

The DOJ discovery memo for Criminal Division prosecutors is particularly illuminating because it catalogs matters that prosecutors “should discuss with case agents during the course of an investigation to ensure that all discoverable material is appropriately identified and preserved.” Some material here for cross-examination, e.g., all “substantive interviews will be memorialized,” all agent notes should be saved, even if later “described, consolidated, or otherwise formalized” in a writing. “Agents should be instructed that all correspondence . . . must be retained,” and this includes email. (No mention of text messages by the way.)

Tired of hearing prosecutors blame discovery lapses on an agent? “[Criminal Division] Attorneys are responsible for monitoring agent compliance to insure that discovery can be made available . . . .” Also, there is very broad language about when a prosecutor should be seeking discovery materials from other federal agencies in complex cases involving parallel civil, criminal or regulatory proceedings. Nothing like that in the CD Cal memo.

Tired of first learning about Henthorn information immediately before trial or a critical evidentiary hearing? Maybe that’s because prosecutors are following the directive that references at “least two weeks before trial” or the hearing for attorneys to contact the DOJ’s “Giglio coordinator” with the name of agents who will be testifying. Why aren’t prosecutors requesting this information upon deciding to call an agent? Also, there is a REDACTED section listing the “quite broad” questions that “should be asked of all testifying law enforcement witnesses.” See https://www.documentcloud.org/documents/1687455-crm-discovery-policy.html.

And here’s Evan’s second e-mail:

Just a few more observations from a further review of some more districts’ discovery policies:

Ever had a hard time persuading a judge that text messagesare within the scope of prosecutors’ discovery obligations? Let’s quote the ND Cal’s “policy on information in electronic communications” in explaining our position:

E-mails or text messages written by AUSAs, agents, and witnesses may contain information such as witness statements, information about witnesses, commentary on a draft report of investigation (such as an FBI 302 or DEA 6), or assertions about substantive issues in the case that could be construed as Brady/Giglio information or information that falls within Rule 16 or the Jencks Act.”

See https://www.documentcloud.org/documents/1503046-ndca-discovery-policy.html.

Rarely get texts in discovery? Note that while the CD Cal’s Discovery Policy appears to be silent on text messages, the ND Cal is clear: “Text messagesbetween agents and witnesses or potential witnesses should also be reviewed [by the AUSA] to determine if they contain substantive information.” (Emphasis added.) So is the SDNY’s policy:

E-mails, text messages, and other e-communications relating to the facts of an investigation or case, or relating to witness credibility, should be preserved to the same extent as any written communication or notes on the subject. These communications will commonly occur between AUSAs and agents; between AUSAs/agents and victims/witnesses; and between victim-witness coordinators and victims/witnesses. . . . the format of the information does not determine whether it is discoverable.”

Ever received a memo documenting all of the communications between agents/prosecutors/witnessesthat occur immediately before and after grand jury testimony, over lunch, on breaks? Have you ever received any documentation of a communication between a victim-witness coordinator and a victim/witness(other than the boiler-plate letters sent by the former)? I haven’t, even though “the format of the information does not determine whether it is discoverable. For example, material exculpatory information that the prosecutor receives during an oral conversation with an agent or a witnessis no less discoverable than if that same information were contained in an e-mail.” SDNY Policy, at 6 (emphasis added).

The ND Cal supplements the DOJ’s Giglio policy with a very detailed protocol for obtaining Henthorn materials, acknowledging: “We have special responsibilities under Henthorn for witnesses who are federal government employees or who are cross-designated from state or local law enforcement agencies if we also have possession of their personnel files.”

The SDNY also utilizes a prototype “SDNY Agent Discovery Letter” that prosecutors must give to agents “when it becomes evident that the investigation will result in charges, and details the discovery policies AUSA’s must discuss with investigators in a “discovery meeting.” The 7-item list of what the prosecutor must tell agents is a great outline for cross-examining agents in evidentiary hearings. Too detailed to quote here, but check out page 2 of https://www.documentcloud.org/documents/1687451-sdny-discovery-policy.html.

The SDNY has very detailed protocols about the efforts a prosecutor must undertake to assemble discovery from a broad array of sources(these provisions are especially relevant in multi-agency matters). It mandates prosecutors do many specific things to unearth discovery which are not included in the CD Cal policy – ranging from “The prosecutor should review the entirety of all files relating to a testifying CI and copy what is necessary for disclosure purposes” (emphasis added), to the requirement that the prosecutor check with the Chief of Public Corruption to find out if involved agents may be the “subjects of investigations of which they are not aware.”

Considering beefing up your discovery request’s itemization of potential Giglio material? Check out the SDNY’s detailed listing, which ranges from the obvious, “monetary benefits,” to “Irresponsible (or worse) Facebook pages/web persona” (sic). See SDNY policy, at 7-8. The provisions on informant disclosures are also quite detailed because, as the SDNY policy notes, “we have a substantial obligation to dig for and disclose this material.”

The SDNY memo also states that information “that impeaches the general credibility of an uncalled witness need not be disclosed,” but warns prosecutors to “be alert to Brady masquerading as Giglio” under such circumstances, and requires they “carefully review witness files for uncalled witnesses for discoverable material. This includes reviewing proffer notes for failed or unsigned cooperators, and safety valve proffers.” (Emphasis added.)

How often do you get additional discovery following conviction and before sentencing? Not often! But, note what the SDNY policy states:

To the extent the Government is relying at sentencing on evidence adduced at trial, it is important to determine whether intervening circumstances may have created new disclosable information. For example, has a cooperator whose evidence is pertinent to a sentencing factor gone bad during the sometimes lengthy period between trial and sentencing? Do intervening PSRs of co-defendants contain any information bearing on the defendant’s sentence? Keep in mind that although evaluating Brady/Giglio at the trial stage is generally more time consuming, over ninety percent of federal charges are resolved by guilty plea, and accordingly anything bearing on sentencing may actually be more crucial for the defense.”

(Emphasis added.)

I’m not 100% bullish on SDNY’s policy memo – it has some lame policies too, like an “it depends” policy on whether or not an agent’s draft report is Jencks material, and advising prosecutors not to provide “free discovery other than de minimus.” But, it looks superior to the comparatively lite CD Cal policy. Contrast the CD Cal’s 3-page Discovery Policy with the 20–pageSDNY Discovery and Disclosure Policy. The latter includes language that could serve us well in discovery and other motions:

[I]t can never be said too often – the polestar of our policy is this: “The United States wins its point whenever justice is done its citizens in the courts.” This means that every prosecutor must subordinate strategic advantage, and even sometimes securing a conviction, to what justice requires. Generally, the prosecutor should consider broad and early disclosure, out of fairness to the defendant, but also because it may frequently lead to the just, speedy resolution of the case by a plea, thus preserving resources of the Office and protecting proof and witnesses for the pursuit of other cases. . . .”

(Emphasis added.)

Some districts I think of as . . . er, um . . . not exactly at the forefront of protecting constitutional rights actually have very comprehensive discovery policies, and all that I checked are longer than CD Cal’s.

So there’s Evan’s thoughts – and the important idea of looking outside our own districts.

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About the Blog

Shortly before I moved on after 28 years of work as a Federal Public Defender, one of the younger attorneys I had the honor to mentor forwarded me an e-mail he’d received from an Assistant United States Attorney. The e-mail complained that my younger colleague was being extremely frustrating, that my colleague was making far too much of a “simple little case,” that the client in the case was going to be deported no matter what, and that my colleague was forcing the prosecutor to “expend a tremendous amount of effort” on what the prosecutor characterized as a “silly issue.” He ended his e-mail by asking, “Have you been hanging out with Carl Gunn?”

Some people would have been insulted by this, but I felt rather proud. Making as much as we can out of what the government sees as “simple little cases,” litigating issues despite the government’s view that they might be “silly,” and “expend[ing] a tremendous amount of effort” on behalf of clients who have the full weight of the government thrown up against them – often with the government’s view that the case is open and shut, or “simple” – is our calling as public defenders and defense attorneys. We all have our different reasons for doing it, but it’s a crucial task – for our clients, our system, and ourselves. As Sir Thomas More was said to say in “A Man for All Seasons” in response to his future son-in- law’s exclamation that he’d “cut down every law in England” to get at the devil: “Oh, and when the last law in England was down and the Devil turned round on you – where would you hide, Roper, all the laws being flat?”

I’m proud if “hanging out with Carl Gunn” means not just accepting the government’s view that cases are “simple” and “little,” that issues are “silly,” and that we shouldn’t expend resources on our clients. Hence the name of this blog: “Hanging out with Carl Gunn.” I hope to offer some thoughts and ideas that the government may think are “silly,” but I respectfully don’t; that you can use in cases that the government may think are “simple,” but aren’t so simple when looked at more critically; and that are an entirely appropriate way to expend our resources. And in the spirit of this being a “hanging out” together, there might be guest bloggers from time to time with their “silly” ideas to offer. I hope you find some of the ideas on this blog helpful and offer whatever comments you might have to add to them.